1. (a) The following definitions apply throughout this section:

   1. (1) "Image" has the meaning set forth in section 4 of this chapter.
   2. (2) "Sexual conduct" has the meaning set forth in section 4 of this chapter.

2. (b) A person who, with intent to view the image, knowingly or intentionally possesses or accesses an image that depicts or describes sexual conduct:

   1. (1) by a child who the person knows is less than eighteen (18) years of age;
   2. (2) by a child less than eighteen (18) years of age, or by a person who appears to be a child less than eighteen (18) years of age, if the representation of the image is obscene (as described in IC 35-49-2-1 ); or

   3. (3) that is simulated sexual conduct involving a representation that appears to be a child less than eighteen (18) years of age, if the representation of the image is obscene (as described in IC 35-49-2-1 );

      commits possession of child sex abuse material, a Level 6 felony, except as otherwise provided in this section. It is not a required element of an offense under subdivision (3) that the child depicted actually exists.

3. (c) The offense described in subsection (b) is a Level 4 felony if:

   1. (1) the person has a prior unrelated conviction for a sex offense (as defined in IC 11-8-8-5.2 ); or

   2. (2) the conduct depicted in the image involves:

      1. (A) bestiality (as described in IC 35-46-3-14 );
      2. (B) a child less than twelve (12) years of age, or who appears to be a child less than twelve (12) years of age;
      3. (C) violence or a depiction of violence against a child, including sado-masochistic abuse (as defined in IC 35-49-1-8 ); or
      4. (D) child molesting.

4. (d) A person who knowingly or intentionally distributes an image that depicts or describes sexual conduct:

   1. (1) by a child who the person knows is less than eighteen (18) years of age;
   2. (2) by a child less than eighteen (18) years of age, or by a person who appears to be a child less than eighteen (18) years of age, if the image is obscene (as described in IC 35-49-2-1 ); or

   3. (3) that is simulated sexual conduct involving a representation that appears to be a child less than eighteen (18) years of age, if the representation of the image is obscene (as described in IC 35-49-2-1 );

      commits distribution of child sex abuse material, a Level 5 felony, except as otherwise provided in this section. It is not a required element of an offense under subdivision (3) that the child depicted actually exists.

5. (e) The offense described in subsection (d) is a Level 3 felony if:

   1. (1) the person has a prior unrelated conviction for a sex offense (as defined in IC 11-8-8-5.2 ); or

   2. (2) the conduct depicted in the image involves:

      1. (A) bestiality (as described in IC 35-46-3-14 );
      2. (B) a child less than twelve (12) years of age, or who appears to be a child less than twelve (12) years of age;
      3. (C) violence or a depiction of violence against a child, including sado-masochistic abuse (as defined in IC 35-49-1-8 );
      4. (D) child molesting;
      5. (E) pecuniary gain by the person; or
      6. (F) distributing the visual depiction to a child less than eighteen
      7. (18) years of age with the intent of inducing, causing, or coercing the child to commit a criminal offense.
6. (f) This section does not apply to a bona fide school, museum, or public library that qualifies for certain property tax exemptions under IC 6-1.1-10 , or to an employee of such a school, museum, or public library acting within the scope of the employee's employment when the possession of the listed materials is for legitimate scientific or educational purposes.

7. (g) It is a defense to a prosecution under this section that:

   1. (1) the person is a school employee, a department of child services employee, or an attorney acting in the attorney's capacity as legal counsel for a client; and
   2. (2) the acts constituting the elements of the offense were performed solely within the scope of the person's employment as a school employee, a department of child services employee, or an attorney acting in the attorney's capacity as legal counsel for a client.

8. (h) Except as provided in subsection (g), it is a defense to a prosecution under this section if all of the following apply:

   1. (1) A cellular telephone, another wireless or cellular communications device, or a social networking website was used to possess, produce, or distribute the image.
   2. (2) The defendant is not more than four (4) years older or younger than the person who is depicted in the image or who received the image.
   3. (3) The relationship between the defendant and the person who received the image or who is depicted in the image was a dating relationship or an ongoing personal relationship. For purposes of this subdivision, the term "ongoing personal relationship" does not include a family relationship.
   4. (4) The crime was committed by a person less than twenty-two
   5. (22) years of age.
   6. (5) The person receiving the image or who is depicted in the image acquiesced in the defendant's conduct.

9. (i) The defense to a prosecution described in subsection (h) does not apply if:

   1. (1) the person who receives the image distributes it to a person other than the person:

      1. (A) who sent the image; or
      2. (B) who is depicted in the image;
   2. (2) the image is of a person other than the person who sent the image or received the image; or

   3. (3) the distribution of the image violates:

      1. (A) a protective order to prevent domestic or family violence or harassment issued under IC 34-26-5 (or, if the order involved a family or household member, under IC 34-26-2 or IC 34-4-5.1-5 before their repeal);
      2. (B) an ex parte protective order issued under IC 34-26-5 (or, if the order involved a family or household member, an emergency order issued under IC 34-26-2 or IC 34-4-5.1 before their repeal);
      3. (C) a workplace violence restraining order issued under IC 34-26-6 ;
      4. (D) a no contact order in a dispositional decree issued under IC 31-34-20-1 , IC 31-37-19-1 , or IC 31-37-19-6 (or IC 31-6-4-15.4 or IC 31-6-4-15.9 before their repeal) or an order issued under IC 31-32-13 (or IC 31-6-7-14 before its repeal) that orders the person to refrain from direct or indirect contact with a child in need of services or a delinquent child;
      5. (E) a no contact order issued as a condition of pretrial release, including release on bail or personal recognizance, or pretrial diversion, and including a no contact order issued under IC 35-33-8-3.6 ;
      6. (F) a no contact order issued as a condition of probation;
      7. (G) a protective order to prevent domestic or family violence issued under IC 31-15-5 (or IC 31-16-5 or IC 31-1-11.5-8.2 before their repeal);
      8. (H) a protective order to prevent domestic or family violence issued under IC 31-14-16-1 in a paternity action;
      9. (I) a no contact order issued under IC 31-34-25 in a child in need of services proceeding or under IC 31-37-25 in a juvenile delinquency proceeding;
      10. (J) an order issued in another state that is substantially similar to an order described in clauses (A) through (I);

      11. (K) an order that is substantially similar to an order described in clauses (A) through (I) and is issued by an Indian:

          1. (i) tribe;
          2. (ii) band;
          3. (iii) pueblo;
          4. (iv) nation; or

          5. (v) organized group or community, including an Alaska Native village or regional or village corporation as defined in or established under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.);

             that is recognized as eligible for the special programs and services provided by the United States to Indians because of their special status as Indians;

      12. (L) an order issued under IC 35-33-8-3.2 ; or
      13. (M) an order issued under IC 35-38-1-30 .

10. (j) It is a defense to a prosecution under this section that:

    1. (1) the person was less than eighteen (18) years of age at the time the alleged offense was committed; and
    2. (2) the circumstances described in IC 35-45-4-6 (a)(2) through IC 35-45-4-6 (a)(4) apply.
11. (k) A person is entitled to present the defense described in subsection (j) in a pretrial hearing. If a person proves by a preponderance of the evidence in a pretrial hearing that the defense described in subsection (j) applies, the court shall dismiss the charges under this section with prejudice.

12. (l) It is a defense to a prosecution under this section that the person:

    1. (1) possessed less than three (3) images prohibited by this section; and

    2. (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access a prohibited image or a copy of a prohibited image:

       1. (A) took reasonable steps to destroy each prohibited image; or
       2. (B) reported the matter to a law enforcement agency and afforded that agency access to each prohibited image.

As added by P.L.92-2026, SEC.31.